CIVIL LITIGATION
CASE ANALYSIS & INVESTIGATION
Solicitor’s considerations
Taking instructions:
• Letter of advice – confirmation of instructions, factual details and objectives, initial advice,
summary of further information and agreed next steps.
• Retainer – Code of Conduct Chapter 1 – fees, complaints etc.
Costs in civil cases
• Solicitor-client costs: profits + disbursements (+VAT).
• Party-party costs:
o CPR 44.2(2): General rule – loser pays winner’s costs.
o CPR 44.2(1): Court has discretion to award costs.
§ Client notified: rare for 100% recovery and any shortfall will have to be paid by them
• Court only provides part of cost in award;
• Court only provides for reasonable costs (usually 70%);
• The other side may not have any money to recover.
• O(1.13): Should advise client from outset that they will not recover all of their costs and provide
costs information and updates throughout.
Funding arrangements
Conditional Fee Arrangement • Not allowed in family, mostly criminal
(CFA): Solicitor’s fees and expenses • Success fee can be charged
payable only in specified • If C wins, can no longer claim success fee or insurance
circumstances (no-win-no-fee). premium from D; however, damages for non-pecuniary
losses are increased by 10% in all civil claims.
• 2005 Regulation requirements:
• Must be in writing
• Specify particular part of proceedings which it
relates to
• Amount of % to increase
• Written reasons for level of success fee.
Damage-Based Agreement (DBA): • Max 25% PI, 25% employment, 50% other cases.
Solicitor can recover percentage of • Agreement must set out how fee is calculated, what
damages in event of success happens if settlement, and how % is arrived at
(contingency fee) – now lawful. • No hybrid model (DBA + hourly) permitted
State Funding/ Legal Aid: Limited in • Only available for individuals (including partners) but not
civil claims (possible for debt, limited companies
housing, discrimination) • Must have sufficient merit and low means to qualify
MERIT AND MEANS TESTED
Statutory Charge and Costs Protection
Successful LA C Successful LA D Unsuccessful LA C Unsuccessful LA D
C’s damages paid by D. D’s costs paid by C. S.11 Access to Justice Act: Same costs protection.
C’s costs are paid by D. If no £ recovered, order for costs will not No s.11(4) application
C report to LAA. statutory charge excess reasonable with available.
If shortfall, LAA applies does not apply. regard to circum. = costs C makes choice to sue
statutory charge over LAA funds D’s cost protection. funded D - it is possible
damages/property shortfall. Court discretion s.11(4): it may not recover
recovered = C’s damages a) Just and equitable. damages or costs –
reduced to meet costs. b) Financial hardship. make client aware!
, CIVIL LITIGATION
PRE-ACTION CONDUCT
Professional Negligence Pre-Action Protocol: Where bringing an action against a professional for
negligence, breach of contract or breach of fiduciary duty.
• 5.2: Preliminary Notice to inform potential D in writing when reasonable chance C will bring a
claim providing relevant details.
• 5.4: Acknowledgement within 21 days.
• 6: Letter of Claim including details of grounds of claim.
o 6.3: NB sanctions if Letter of Claim is materially different from statement of case.
• 7: Letter of Acknowledgement within 21 days of receipt.
• 8.2: Investigations within 3 months from letter of acknowledgement and respond to letter of claim
• 9.2: Letter of Response to claimant’s allegations.
o 9.4.1: If Letter of Response denies and no Letter of Settlement, C can commence.
o Otherwise, 6-month period from date of Letter of Acknowledgement to resolve claim.
• 9.3: Letter of Settlement indicating views on specific issues and proposal.
Practice Direction for Pre-Action Conduct: Steps prior to issuing a claim –
• 6(a): C writes to D with details of claim.
• 6(b): D responds within reasonable time – 14 days – 3 months based on complexity.
• 6(c): Key documents disclosed.
• 8 – 9: ADR, settlement and negotiation considered with litigation as last resort.
Consequences of Non-Compliance
• PD PAC 13: Court will look at whether parties have complied in substance, account for
proportionality and will not be concerned with minor infringements.
• PD PAC 15: Where there has been non-compliance, court may order:
o Parties relieved of obligations to comply further with the PDs and protocols.
o Proceedings stayed while parties comply with PDs and protocols.
o Sanctions applied (costs sanctions; costs on indemnity; interest not awarded; higher
interest rate applied).
• CPR 44.2(5)(a): Court will consider conduct of parties in complying with PAPs when exercising
discretion to award costs.
•
Commencement of Proceedings
CPR 7:
• Less than £100,000 – County Court;
• More than £100,000 – County Court or High Court depending on CPR PD 7A, para 2.4:
o Financial value (not including interest, costs, counterclaim, contributory negligence);
o Legal complexity of facts/issues/procedures/remedies; and
o Public importance of case.
Transfer between County Court and High Court
CPR 30.3(2): Criteria similar to that set out in CPR PD 7A, para 2.4.
• There may be costs sanctions imposed on a party who has started proceedings in the incorrect
court.
• CPR 30: If wrongly commenced in the County Court, the court would transfer the case to the High
Court and costs sanction may be imposed.
Tracks:
CPR 27: Claims up to £10,000 – small claims track.
CPR 28: Claims between £10,000 and £25,000 – fast track.
CPR 29: Claims over £25,000 – multi-track (most High Court cases allocated to the multi-track).
, CIVIL LITIGATION
Pre-Action Disclosure
CPR 31.16: Allows a party to apply to court for pre-action disclosure under CPR 31.16(3) –
• (a) Respondent likely to be a party to proceedings
• (b) Applicant likely to be a party to proceedings
• (c) Had proceedings started, documents would have been disclosed under standard disclosure
• (d) Disclosure desirable to:
o Dispose fairly of proceedings
o Assist in resolution without proceedings
o Save costs.
Pre-Action Part 36 Offers
CPR 36: Either C or D can make offers to settle under Part 36 in the pre-action stage.
Cost-benefit analysis
In favour of litigation Against litigation
Large sums of money at stake Costly – long and complex action, time consuming
and risky
Solicitors have professional indemnity insurance Difficult to prove negligence
(if you are taking on a firm of solicitors)
Must prove negligence – can be difficult for Uncertainty
defendant to prove he was not negligent
Public if you want the defendant to be held Risk of paying substantial costs if you lose if the
accountable defendant is likely to be able to afford top (costly)
legal professional.
Case must be watertight (if it is – this is beneficial) Case must be watertight (if it is not – harmful)
MOST IMPORTANT PARTS OF A CIVIL ACTION CLAIM: MUST BE ABLE TO PROVE…
DUTY: The defendant owed the • Express terms in retainer.
claimant a duty of care. • SGA 1973 (s.13 and s.14).
• Additional letters constituting retainer.
BREACH: The duty of care was • Experience and specialism of D.
breached. • Evidence from those similarly qualified
• Should the advice have been qualified (e.g. ‘I cannot say for
certain but…’)
CAUSATION: Which caused… • The loss must flow from the breach.
• The loss cannot be too remote.
• The claimant must have relied on the defendant.
LOSS: The loss. • Did the claimant do anything to mitigate or aggravate their
loss?
DEFENCES: Remoteness, contributory negligence, mitigation.
, CIVIL LITIGATION
THE CLAIM FORM, RESPONSE AND JUDGMENT IN DEFAULT
The Claim Form
CPR 7.2: To commence proceedings fee + claim form (three copies (unless multiple defendant) – one for
court, one for you and one to serve on defendant(s)).
• Fee for a claim greater than £200,000 is £10,000.
CPR 7.4(1)(b): Where claim form and Particulars are not served together, the Particulars must be served
by the claimant within 14 days of serving the claim form.
CPR PD 7, para 5.1 and 5.2: Issuing claim form stops the limitation period running.
• Serving claim form:
o Claim form served on defendant by claimant or court (with or without particulars of claim
attached).
o CPR 7.5 and CPR 7.4(2): Claim form and particulars of claim must be served on the
defendant by midnight on the calendar day 4 months after the date of issue of the claim
form.
o CPR 6.14: Deemed service – 2nd business day after completion of the relevant step.
• Address for service (CPR 6.7 – 6.11):
o Where solicitor authorised to accept service, must be served on solicitor
o Where solicitor not authorised, parties must give address
o If no address given, service effected in accordance with CPR 6.9.
Service of Other Documents
CPR 6.26:
• Post – 2nd day after date of positing if on a business day.
o If not on business day, the next business day after that day.
• Delivery to address/Fax/Email/personal service – before 4:30pm on that business day.
o If not business day or after 4:30pm, the next business day after that day.
CPR 6.23: Address of service –
• If solicitor authorised to accept, must be served on solicitor.
• If no solicitor, parties must give address in UK or EEU (if none, must give another address).
Response by Defendant
• D must do one of three things 14 days after service of the Particulars of Claim:
o CPR 14: Admit all or part of the claim;
o CPR 15: File a defence; or
o CPR 10: File an acknowledgement of service.
Time Limits
Acknowledgement of Service Defence
CPR 10.3: Period for filing: • If CF and Particulars filed together = 14
• If CF and Particulars filed together = 14 days after service.
days after service. • If CF and Particulars served separately = 14
• If CF and Particulars served separately = 14 days after service of Particulars.
days after service of Particulars. • Where acknowledgement of service is
filed… you have 14 days from the service of
acknowledgement to file your defence.
• CPR 15.4(1)(b) *** Key: maximum of 28
days after Particulars served to file
defence.
CASE ANALYSIS & INVESTIGATION
Solicitor’s considerations
Taking instructions:
• Letter of advice – confirmation of instructions, factual details and objectives, initial advice,
summary of further information and agreed next steps.
• Retainer – Code of Conduct Chapter 1 – fees, complaints etc.
Costs in civil cases
• Solicitor-client costs: profits + disbursements (+VAT).
• Party-party costs:
o CPR 44.2(2): General rule – loser pays winner’s costs.
o CPR 44.2(1): Court has discretion to award costs.
§ Client notified: rare for 100% recovery and any shortfall will have to be paid by them
• Court only provides part of cost in award;
• Court only provides for reasonable costs (usually 70%);
• The other side may not have any money to recover.
• O(1.13): Should advise client from outset that they will not recover all of their costs and provide
costs information and updates throughout.
Funding arrangements
Conditional Fee Arrangement • Not allowed in family, mostly criminal
(CFA): Solicitor’s fees and expenses • Success fee can be charged
payable only in specified • If C wins, can no longer claim success fee or insurance
circumstances (no-win-no-fee). premium from D; however, damages for non-pecuniary
losses are increased by 10% in all civil claims.
• 2005 Regulation requirements:
• Must be in writing
• Specify particular part of proceedings which it
relates to
• Amount of % to increase
• Written reasons for level of success fee.
Damage-Based Agreement (DBA): • Max 25% PI, 25% employment, 50% other cases.
Solicitor can recover percentage of • Agreement must set out how fee is calculated, what
damages in event of success happens if settlement, and how % is arrived at
(contingency fee) – now lawful. • No hybrid model (DBA + hourly) permitted
State Funding/ Legal Aid: Limited in • Only available for individuals (including partners) but not
civil claims (possible for debt, limited companies
housing, discrimination) • Must have sufficient merit and low means to qualify
MERIT AND MEANS TESTED
Statutory Charge and Costs Protection
Successful LA C Successful LA D Unsuccessful LA C Unsuccessful LA D
C’s damages paid by D. D’s costs paid by C. S.11 Access to Justice Act: Same costs protection.
C’s costs are paid by D. If no £ recovered, order for costs will not No s.11(4) application
C report to LAA. statutory charge excess reasonable with available.
If shortfall, LAA applies does not apply. regard to circum. = costs C makes choice to sue
statutory charge over LAA funds D’s cost protection. funded D - it is possible
damages/property shortfall. Court discretion s.11(4): it may not recover
recovered = C’s damages a) Just and equitable. damages or costs –
reduced to meet costs. b) Financial hardship. make client aware!
, CIVIL LITIGATION
PRE-ACTION CONDUCT
Professional Negligence Pre-Action Protocol: Where bringing an action against a professional for
negligence, breach of contract or breach of fiduciary duty.
• 5.2: Preliminary Notice to inform potential D in writing when reasonable chance C will bring a
claim providing relevant details.
• 5.4: Acknowledgement within 21 days.
• 6: Letter of Claim including details of grounds of claim.
o 6.3: NB sanctions if Letter of Claim is materially different from statement of case.
• 7: Letter of Acknowledgement within 21 days of receipt.
• 8.2: Investigations within 3 months from letter of acknowledgement and respond to letter of claim
• 9.2: Letter of Response to claimant’s allegations.
o 9.4.1: If Letter of Response denies and no Letter of Settlement, C can commence.
o Otherwise, 6-month period from date of Letter of Acknowledgement to resolve claim.
• 9.3: Letter of Settlement indicating views on specific issues and proposal.
Practice Direction for Pre-Action Conduct: Steps prior to issuing a claim –
• 6(a): C writes to D with details of claim.
• 6(b): D responds within reasonable time – 14 days – 3 months based on complexity.
• 6(c): Key documents disclosed.
• 8 – 9: ADR, settlement and negotiation considered with litigation as last resort.
Consequences of Non-Compliance
• PD PAC 13: Court will look at whether parties have complied in substance, account for
proportionality and will not be concerned with minor infringements.
• PD PAC 15: Where there has been non-compliance, court may order:
o Parties relieved of obligations to comply further with the PDs and protocols.
o Proceedings stayed while parties comply with PDs and protocols.
o Sanctions applied (costs sanctions; costs on indemnity; interest not awarded; higher
interest rate applied).
• CPR 44.2(5)(a): Court will consider conduct of parties in complying with PAPs when exercising
discretion to award costs.
•
Commencement of Proceedings
CPR 7:
• Less than £100,000 – County Court;
• More than £100,000 – County Court or High Court depending on CPR PD 7A, para 2.4:
o Financial value (not including interest, costs, counterclaim, contributory negligence);
o Legal complexity of facts/issues/procedures/remedies; and
o Public importance of case.
Transfer between County Court and High Court
CPR 30.3(2): Criteria similar to that set out in CPR PD 7A, para 2.4.
• There may be costs sanctions imposed on a party who has started proceedings in the incorrect
court.
• CPR 30: If wrongly commenced in the County Court, the court would transfer the case to the High
Court and costs sanction may be imposed.
Tracks:
CPR 27: Claims up to £10,000 – small claims track.
CPR 28: Claims between £10,000 and £25,000 – fast track.
CPR 29: Claims over £25,000 – multi-track (most High Court cases allocated to the multi-track).
, CIVIL LITIGATION
Pre-Action Disclosure
CPR 31.16: Allows a party to apply to court for pre-action disclosure under CPR 31.16(3) –
• (a) Respondent likely to be a party to proceedings
• (b) Applicant likely to be a party to proceedings
• (c) Had proceedings started, documents would have been disclosed under standard disclosure
• (d) Disclosure desirable to:
o Dispose fairly of proceedings
o Assist in resolution without proceedings
o Save costs.
Pre-Action Part 36 Offers
CPR 36: Either C or D can make offers to settle under Part 36 in the pre-action stage.
Cost-benefit analysis
In favour of litigation Against litigation
Large sums of money at stake Costly – long and complex action, time consuming
and risky
Solicitors have professional indemnity insurance Difficult to prove negligence
(if you are taking on a firm of solicitors)
Must prove negligence – can be difficult for Uncertainty
defendant to prove he was not negligent
Public if you want the defendant to be held Risk of paying substantial costs if you lose if the
accountable defendant is likely to be able to afford top (costly)
legal professional.
Case must be watertight (if it is – this is beneficial) Case must be watertight (if it is not – harmful)
MOST IMPORTANT PARTS OF A CIVIL ACTION CLAIM: MUST BE ABLE TO PROVE…
DUTY: The defendant owed the • Express terms in retainer.
claimant a duty of care. • SGA 1973 (s.13 and s.14).
• Additional letters constituting retainer.
BREACH: The duty of care was • Experience and specialism of D.
breached. • Evidence from those similarly qualified
• Should the advice have been qualified (e.g. ‘I cannot say for
certain but…’)
CAUSATION: Which caused… • The loss must flow from the breach.
• The loss cannot be too remote.
• The claimant must have relied on the defendant.
LOSS: The loss. • Did the claimant do anything to mitigate or aggravate their
loss?
DEFENCES: Remoteness, contributory negligence, mitigation.
, CIVIL LITIGATION
THE CLAIM FORM, RESPONSE AND JUDGMENT IN DEFAULT
The Claim Form
CPR 7.2: To commence proceedings fee + claim form (three copies (unless multiple defendant) – one for
court, one for you and one to serve on defendant(s)).
• Fee for a claim greater than £200,000 is £10,000.
CPR 7.4(1)(b): Where claim form and Particulars are not served together, the Particulars must be served
by the claimant within 14 days of serving the claim form.
CPR PD 7, para 5.1 and 5.2: Issuing claim form stops the limitation period running.
• Serving claim form:
o Claim form served on defendant by claimant or court (with or without particulars of claim
attached).
o CPR 7.5 and CPR 7.4(2): Claim form and particulars of claim must be served on the
defendant by midnight on the calendar day 4 months after the date of issue of the claim
form.
o CPR 6.14: Deemed service – 2nd business day after completion of the relevant step.
• Address for service (CPR 6.7 – 6.11):
o Where solicitor authorised to accept service, must be served on solicitor
o Where solicitor not authorised, parties must give address
o If no address given, service effected in accordance with CPR 6.9.
Service of Other Documents
CPR 6.26:
• Post – 2nd day after date of positing if on a business day.
o If not on business day, the next business day after that day.
• Delivery to address/Fax/Email/personal service – before 4:30pm on that business day.
o If not business day or after 4:30pm, the next business day after that day.
CPR 6.23: Address of service –
• If solicitor authorised to accept, must be served on solicitor.
• If no solicitor, parties must give address in UK or EEU (if none, must give another address).
Response by Defendant
• D must do one of three things 14 days after service of the Particulars of Claim:
o CPR 14: Admit all or part of the claim;
o CPR 15: File a defence; or
o CPR 10: File an acknowledgement of service.
Time Limits
Acknowledgement of Service Defence
CPR 10.3: Period for filing: • If CF and Particulars filed together = 14
• If CF and Particulars filed together = 14 days after service.
days after service. • If CF and Particulars served separately = 14
• If CF and Particulars served separately = 14 days after service of Particulars.
days after service of Particulars. • Where acknowledgement of service is
filed… you have 14 days from the service of
acknowledgement to file your defence.
• CPR 15.4(1)(b) *** Key: maximum of 28
days after Particulars served to file
defence.
